The Michigan Land Use Institute and the Environmental Law & Policy Center, with the assistance of New Alternatives, have evaluated the Federal Highway Administration and Michigan Department of Transportation’s "US-31 Petoskey Area Improvement Study" Supplemental Draft Environmental Impact Statement and Section 4(f)/6(f) Evaluation (hereafter referred to as the SDEIS). This evaluation of the SDEIS is submitted herein for the public record as part of the public comment period on the SDEIS.

Based on the evaluation, the preparers have concluded, and hereby respectfully request, that the Federal Highway Administration (FHWA) should reject the SDEIS as inadequate, incomplete, and a failure in meeting project goals. Rather, the FHWA should require the Michigan Department of Transportation (MDOT) to address, correct, and redo the clearly faulty and deficient SDEIS, if the study is to proceed at all. The request is made that these corrective actions be taken prior to FHWA and MDOT’s issuing of a final EIS for this project.

The Institute and ELPC also urge MDOT to fully consider, optimize, and combine lower cost and ecologically more sensitive improvements to existing roads in the project area, as allowed for under 1996 Congressional legislation specific to this project. This includes the Smart Roads: Petoskey alternative and its call to upgrade existing local roads, develop and enact a land-protection program, and modernize U.S. 31. (See Appendix, Item Nos. 2-4.)

The Institute and ELPC have identified several areas in which the SDEIS fails to comply procedurally with the National Environmental Policy Act (NEPA) and the Michigan Environmental Protection Act (MEPA), and other public laws and regulations. These failures of the SDEIS are detailed in this document and include:

1. FAILURE TO MEET PROJECT’S PURPOSE AND NEED AND GOALSThe purpose and need, and goals, of the Michigan Department of Transportation’s Petoskey Area Improvement Study are not met by the work conveyed in the remainder of the SDEIS. This abject failure to attain desirable levels of service on U.S. 31 and to protect existing land uses calls into question the necessity and legality of spending $80 million to $90 million while causing significant environmental destruction and community disruption. These failings are discussed in greater detail in Section 1 below.

2. INSUFFICIENT STUDY OF ALTERNATIVESIn the SDEIS, the Michigan Department of Transportation fails to rigorously explore and objectively evaluate study all reasonable, prudent, and feasible alternatives. In particular, MDOT refuses to evaluate local roads alternatives, including Smart Roads: Petoskey – a two-lane local roads option developed by the Michigan Land Use Institute and New Alternatives, with the substantial participation of local officials and residents of Emmet County. Smart Roads: Petoskey is a prudent and feasible alternative that enjoys substantial public support.

3. ENVIRONMENTAL DESTRUCTIONBecause MDOT refuses to consider less that a four-lane road design, summarily rejects Smart Roads: Petoskey, and wholly ignores significant land protection concepts, MDOT’s proposed bypass is needlessly destructive of the natural environment. The build alternatives would destroy 21-23 acres of wetlands, 110 acres of farmland, and 50 acres of forest. Moreover, in its formal comment on the SDEIS, the Tip of the Mitt Watershed Council – the region’s pre-eminent water resource protection group for the last 21 years – calls this the most destructive proposed project to water resources that the organization has encountered. This is discussed in greater detail in Section 3 below.

4. INCONSISTENCY WITH LOCAL LAND USE PLANSA stated goal of the SDEIS is to "maintain compatibility with existing land use patterns and complement future land use master plans." MDOT’s proposed build alternatives do not meet, and in fact conflict with, local plans and expectations for the design of future transportation improvements and the resulting impact to the landscape. This is discussed in greater detail in Section 4 below.

5. STRONG PUBLIC OPPOSITION TO A FOUR-LANE BYPASSMuch of the public in Emmet County opposes MDOT’s proposed four-lane bypass, the state representative for the region in February declared the project dead, and Resort Township voted in February to oppose the build alternatives. A January 2002 letter from the director of MDOT to a state representative said MDOT will withdraw from the project if local consensus is not obtained. Moreover, MDOT states in the SDEIS that "strong public opposition" is grounds for dismissal of an alternative. (SDEIS, p. 3-1) Therefore, MDOT’s build alternatives proposed to date should be dismissed. In addition, rather than fairly solicit the public feedback, however, MDOT has actively worked to minimize and dilute public input.

Public Comment on the SDEIS

The Michigan Land Use Institute and the Environmental Law and Policy Center have identified the following flaws in the "US-31 Petoskey Area Improvement Study" Supplemental Draft Environmental Impact Statement and Section 4(f)/6(f) Evaluation (August 2001), FHWA-MI-EIS-94-02-DS:

INTRODUCTION – THE NATIONAL ENVIRONMENTAL POLICY ACTTo provide a framework for analyzing the many shortcomings of the SDEIS, we will begin by outlining the purpose and requirements of the primary applicable environmental law, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq.

Through NEPA, Congress declared a "broad national commitment to protecting and promoting environmental quality." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). Congress’ chosen tool for achieving such environmental protection is a procedural one – NEPA requires an agency proposing a major project to prepare an environmental impact statement ("EIS") for such project.

The EIS process involves three main elements. First, the agency must define the purpose and goals of the proposed project. Second, the agency must "rigorously explore and objectively evaluate all reasonable alternatives" for achieving the purpose and goals of the project. 40 C.F.R 1502.14(a). Finally, the agency is required to take a "hard look" at the environmental consequences of the reasonable alternatives. Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 97 (1983).

The EIS process serves two critically important functions. First, it helps agencies make fully informed and well-considered decisions by ensuring that significant environmental impacts are not overlooked or underestimated. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Second, the EIS process provides important information about a project to the public, which may then, in turn, assist the agency in making better decisions through the comment process. DuBois v. U.S. Dep’t of Agriculture, 102 F.3d 1273, 1285-86 (1st Cir. 1996). The goals of NEPA, however, will be achieved only if the agency fully and objectively analyzes all reasonable alternatives and their environmental impacts, and this analysis is fully provided to the public.

As this Comment will demonstrate, the SDEIS for the US-31 Petoskey Area Improvement Study fails to satisfy these key requirements of NEPA. 1. FAILURE TO MEET PROJECT’S PURPOSE AND NEED AND GOALS

The purpose and need, and goals, of the Michigan Department of Transportation’s Petoskey Area Improvement Study are not met by the work conveyed in the remainder of the SDEIS. This abject failure to attain desirable levels of service on U.S. 31 and to protect existing land uses calls into question the necessity and legality of spending $80 million to $90 million while causing significant environmental destruction and community disruption.

The purpose and need and goals of the proposed project and its build alternatives described in the SDEIS are to relieve congestion on U.S. 31 while protecting existing commercial, residential, agricultural, and other existing land uses. In addition, the proposed project is intended to serve as a national model of how to relieve traffic problems without harming the local economy or creating major shifts in existing land use and development patterns. (SDEIS, p. 1-1 to 1-2)

These goals provide the framework for conducting the SDEIS, developing alternatives, and involving the public in the pursuit of an acceptable project. The fact that the SDEIS fails to craft and consider alternatives that satisfy these goals is a fatal flaw of the study, as the process is described and intended in the National Environmental Policy Act.The Importance of the Purpose and Need Statement

An agency’s first step in preparing an environmental impact statement is to "specify the underlying purpose and need" for any project that it proposes. 40 C.F.R. § 1502.13. The purposes and needs identified by an agency are of critical importance because they are the baseline by which the reasonableness of various alternatives are to be measured. City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997); Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664, 666 (7th Cir. 1997). For example, an agency may properly reject an alternative that completely fails to fulfill the purpose and needs of the project. Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 706 (3rd Cir. 1999). By the same logic, however, it would be arbitrary and capricious for an agency to advance alternatives that only partially fulfill the goals of the project while rejecting other alternatives that do a better job of fulfilling those goals.

In its attempt to meet purpose and need, MDOT’s analysis is flawed, in part, because MDOT has arbitrarily and capriciously advanced two build alternatives that do not meet the goals that the agency itself articulates in the study.

A. The Build Alternatives Fail to Meet the Congestion Relief Goal of the StudyAs part of meeting its overall purpose of improving cross-town traffic circulation in Petoskey, MDOT sets as its first goal that of achieving a Level of Service ("LOS") of at least C on US-31, where possible. (SDEIS p. 2-4) LOS is a measure of the operating conditions of a road based on the prevailing traffic conditions at peak travel times. The LOS for a road can range from an "A" (the best) to an "F" (the worst).

MDOT’s own analysis shows that the two build alternatives advanced in the SDEIS do not meet the agency’s traffic goals. With either build alternative, the majority – five of seven – of the segments of US-31 would have a LOS "D" (1 segment), LOS "E" (2 segments), or LOS "F" (2 segments). (SDEIS p. 3-12, Figure 3.2-8) Only two segments of US-31 would have an LOS of C or better. Furthermore, four of the nine intersections along US-31 would have an LOS of D or E with either of the build alternatives. (SDEIS p.3-12, Table 3.2-1.)

MDOT attempts to mask the shortcomings of its alternatives by stating that the build alternatives will "reduce travel time and delay." (SDEIS p.3-12) However, this statement is completely unsubstantiated; there are no estimates in the SDEIS regarding how much travel time would be saved through the build alternatives. This lack of essential data in the SDEIS effectively blinds the public, and government bodies, to the actual benefit provided by the build alternatives, as well as alternatives that were dismissed. See, e.g., Sierra Club v. U.S. Dep’t of Transp., 962 F. Supp. 1037, 1044 (N.D. Ill. 1997) (finding that EIS failed to provide adequate basis for advancing alternative that agency claimed would improve travel time because, in part, the EIS contained no analysis as to what extent the alternative would improve travel times).

Since at least 1967, Local Traffic –Not Regional Pass-Through Traffic – Has Been the Real Source of CongestionOne reason that the build alternatives fail to achieve the traffic reduction goals set forth by MDOT is that they are not directed at the problem identified by MDOT, namely the increased volume of local traffic on US-31. As MDOT notes, US-31 was designed for the "primary function of carrying long-distance trips," (SDEIS, p.2-5) usually involving tourists from downstate who are travelling to northern destinations such as Harbor Springs and Mackinac Island. US-31 is becoming more congested, however, because an increasing share of the traffic on US-31 consists of local residents travelling locally to work, stores, school, etc. (SDEIS, p. 2-5)

In fact, the majority of traffic on U.S. 31 has been local traffic since at least 1967, the date of MDOT’s first traffic study for the area. (SDEIS, p. 2-5) Simply put, a rural bypass designed to carry pass-through traffic does little to relieve local traffic congestion on U.S. 31, which is a few miles north of the proposed bypass corridors. Moreover, through travelers on U.S. 31 are unlikely to elect to use a bypass that is nearly 50 percent longer than remaining on U.S. 31. MDOT knows that their rural bypass proposals likely would be ineffective and says so in the SDEIS: "All of MDOT’s previous modeling had indicated a relationship between closeness of a beltway location to the downtown area, and the amount of traffic that it would divert." (SDEIS, p.3-23)

The logical solution to the increase in local traffic – which is the majority traffic type – on US-31, therefore, would be to improve the arterial grid in Petoskey and the adjoining portions of Resort and Bear Creek townships. This would include upgrading and connecting existing local roads, so that local residents can get from one side of Petoskey to the other, and to points in-between, more easily. In addition, MDOT should modernize the intersections on U.S. 31, many of which have substandard design and outdated traffic signals.

B. The Build Alternatives Do Not Protect Existing Centers of CommerceMDOT states that the second goal of the Petoskey project is to "protect the economic viability of existing commerce centers" through the use of "state and local innovative planning tools" and controlled access along the new route. (SDEIS, p.2-4) This goal scarcely is mentioned after the purpose-and-need statement and is not met by the proposed build alternatives.

This failure is particularly troubling because Petoskey’s downtown Gaslight District is a national historic landmark. As such, the downtown is a source of pride for the region and still contains service-oriented businesses – such as a clothing store, a music store, a photography shop, a book store, an office supply shop, and a locally owned movie house – that would be undermined by the development opportunity created by a 10-mile rural bypass.

This goal further identifies three specific actions:

combine state and local innovative planning tools to discourage new development that could potentially compete with existing centers of commerce;

limit, where possible, impacts to existing businesses; and,

control access to/ from the new route to help prevent undesired development. (SDEIS, p. 1-2)

The SDEIS wholly lacks discussion of any state or local planning tools that could be employed to discourage new development along a bypass to prevent it from competing with existing centers of commerce, or how to limit impacts to existing businesses. While implementation of any land use tools would occur mostly at the local level, the study does not demonstrate any attempt to offer guidance or suggestion to the local community about how to achieve this goal.

There are a variety of planning tools that can discourage new commercial development along a transportation corridor, including the purchase of development rights (PDR), impact fees, agricultural districts, official maps, and growth boundaries. To satisfy this study goal, these tools should be discussed along with any build alternative. Not only should the tools be described, but also a process should be outlined for implementing these tools among the local units of government that share land use regulatory authority.

The build alternatives involve only one tool designed to help limit development that could threaten existing commerce centers – the prohibition of driveway access along the new highway. MDOT itself acknowledges that this step will not be sufficient to stop the new commercial development that is likely to build up along the build alternatives. "This technique alone, however, would not fully address identified potential secondary and cumulative impacts." (SDEIS, p. 5-75) Thus, in this section, the SDEIS states that it fails to meet its own goal of protecting existing land uses.

Indeed, limiting driveway access still will allow development to spread along the bypass itself and then use driveways that connect to one of the 13 local roads that would intersect with the bypass. Moreover, development of big box stores and other commercial enterprises would spread to the cross streets along the new route. Either way, a bypass is highly likely to promote new development along its 10-mile length and away from existing commercial centers.

MDOT’s Cadillac Bypass, Completed in 2001, Illustrates Sprawl ProblemDirect evidence from MDOT’s most recently constructed bypass shows that major conversions of existing land use are guaranteed to occur in the Petoskey area.

In the fall of 2001, MDOT opened its bypass of Cadillac, about 80 miles south of Petoskey on U.S. 131. After MDOT finalized plans to build a bypass of Cadillac, but before construction even began, numerous state and national retailers announced their intentions to locate along the exits of the bypass, including a Meijer big-box grocery store, Ruby Tuesday restaurant, Home Depot, Office Max, ABC Warehouse, and MC Sporting Goods.

This type of big-box retail development is highly likely to occur along the proposed Petoskey bypass, with easy motor vehicle access provided at each of the 13 bypass intersections with local roads. Ten or 11 of the bypass intersections are proposed by MDOT to be at-grade with local roads and therefore ripe for development. In addition, MDOT projects that the Petoskey bypass by 2020 will carry up to 21,800 vehicles per day, a quantity equivalent to traffic volumes on much of U.S. 31 today, the region’s primary commercial corridor. Resort and Bear Creek township both experienced double-digit growth between 1990 and 2000, Resort gaining 20 percent more residents and Bear Creek a whopping 52 percent. Population is expected to continue to soar as retirees move away from southern Michigan. This expected increase in population and traffic will apply substantial development pressure – both commercial and residential – along any major new highway near Petoskey.MDOT Has Not Attempted to Protect Existing Centers of CommerceBeyond controlling access, the SDEIS is devoid of any discussion or proposal by the state as to what land use planning tools it has – or MDOT’s related state and federal agencies might have – and is willing to identify, offer, or coordinate.

MDOT’s failure to protect existing commerce centers, however, is not due to the lack of options for achieving that goal. In fact, the Michigan Land Use Institute and New Alternatives via their Smart Roads: Petoskey alternative proposed a series of innovative planning tools that could be used to limit development along any new route and thereby help protect the viability of existing economic centers, such as Petoskey’s downtown Gaslight District – a national historic landmark. In summary, the Institute and New Alternatives proposed these five actions, with 27 separate tools, for protecting the landscape along any new roadway:

Adopt Regional Planning

Strengthen Zoning

Employ Conservation Measures

Improve Site Planning

Purchase Land or Development Rights

In the SDEIS, MDOT claims to support the use of such planning tools by including a single sentence in the study stating, "The MDOT is supportive of the land use control measures proposed by the MLUI; however, local support would be needed to implement these measures." (SDEIS, p. 5-76)

MDOT failed to undertake any analysis regarding their efficacy or ways to implement these measures. MDOT’s refusal to perform any study of planning tools that will help manage and direct growth suggests that it is not really serious about achieving its second goal for this project.

C. The Build Alternatives Fail to Serve as a National Model of How to Promote Economic Stability and Preserve Land Use PatternsThe third goal of the SDEIS calls for serving as a national model of improving traffic flow without disrupting the "economic stability of a community" or creating "major shifts in land use patterns that sever recognized cohesive property units." (SDEIS, p. 1-2) The SDEIS provides precise details and data showing that the study fails to meet this third goal.

In addition, the design size of the proposed alternative as a four-lane divided highway with a very large right-of-way is not an innovative or creative solution that fits the rural, scenic character of the area. In fact, such a design would be considerably larger and more imposing on the landscape than any of the existing transportation routes in the community. It also does not minimize impact on existing renewable or sensitive resources. The proposed right-of-way would create a significant negative impact on existing agricultural operations.

The Michigan Land Use Institute for several years has advocated – in Petoskey, throughout Michigan, and in the state legislature – for transportation solutions that fit with the character of the existing community and do not create sprawl that will destroy open space and threaten downtown business districts. Unfortunately, beyond the purpose and need statement, MDOT makes absolutely no mention in the rest of the SDEIS of this project being a demonstration to the nation. The fact is that MDOT’s three- and four-lane bypass build alternatives do not serve as a demonstration to anyone. Countless other towns across the nation have built such bypasses with predictable results – sprawling development that changes the nature of the area where the highway is built and threatens the existing downtown commerce center. Nothing in the SDEIS explains why MDOT’s proposal for Petoskey will not have the same results.

For this study to be considered as a "demonstration to other communities in the nation," the SDEIS should include some discussion about methods and tools that are unique or exemplary in protecting economic stability and preventing major land use shifts. The study does not indicate any remarkable leadership or guidance from MDOT that would make this project a model to other communities in the state or nation.

For example, the local community has clearly indicated an interest in protecting active agricultural operations. The study acknowledges that both Build Alternatives will significantly impact agricultural lands. Yet there is virtually no solution offered (in SDEIS, Section 5.3.1) that would mitigate or protect farmland along either build alternative. Many innovative farmland protection programs are being implemented around the state, and nation, but the study does not address any of these programs, or attempt to incorporate their findings into the build alternatives.D. Incompatibility with Existing Land Uses, Future PlansFinally, MDOT states as its fourth goal that its project must "maintain compatibility with existing land use patterns and complement future land use master plans." (SDEIS, p. 2-4) Again, the SDEIS itself acknowledges its failure to meet its own goals. In the case of the fourth goal, MDOT cites the incompatibility of the build alternatives with the existing community, noting that the road design "would be a stark contrast to the narrow two-lane rural grid pattern of roads that existed historically and still exists today." (SDEIS, p. 5-49, 5-50) Furthermore, either build alternative would require the rerouting, or the ending in a cul-de-sac, of parts of seven existing local roads in the townships.

In short, the build alternatives are inconsistent with the land use master plans of Emmet County, the city of Petoskey, and Bear Creek and Resort townships. All of these local governments have developed future land use plans that envision preserving the rural character of the city and county, both prime resort destinations. MDOT’s proposed 3- and 4-lane highway bypass, with a profile in places matching that of an interstate highway, clearly is in conflict with the plans of these local governments. This point is discussed in much greater detail below in Section 4, "Inconsistency with Local Land Use Plans."

2. INSUFFICIENT STUDY OF ALTERNATIVESIn the SDEIS, the Michigan Department of Transportation fails to rigorously explore and objectively evaluate study all reasonable, prudent, and feasible alternatives. In particular, MDOT refuses to evaluate local roads alternatives, including Smart Roads: Petoskey – a two-lane local roads option developed by the Michigan Land Use Institute and New Alternatives, with the substantial participation of local officials and residents of Emmet County. Smart Roads: Petoskey is a prudent and feasible alternative that enjoys substantial public support.

Instead, MDOT modeled its own "Optimized Local Road Improvement Alternative (LRIA)," concluded that it failed to meet project goals, and then declared that the "optimized" plan and Smart Roads: Petoskey were nearly identical and thus could both be dismissed. (SDEIS, p.3-23) The "optimized" alternative is not similar to Smart Roads: Petoskey in several critical fashions, including road width, routing, land protection plan, and proposed modifications to existing U.S. 31. In addition, a main element of the LRIA is an extension and upgrade of Sheridan Road. This element, however, is very similar to the Near-South Alignment that was rejected by the City of Petoskey in 1997. By including this element in the LRIA, it was a foregone conclusion that the City would object to the LRIA if it was advanced. By designing the LRIA to fail, MDOT has demonstrated that it is not objectively considering reasonable alternatives to its proposals.

Further harming its alternative analysis, MDOT relies on traffic modeling that lacks precision and results in inaccurate forecast, which ultimately serve as the primary justification for the build alternatives.

The SDEIS Fails to Rigorously Explore and Objectively Evaluate All Reasonable Alternatives, as Required by the National Environmental Policy ActThe heart of an environmental impact statement is the consideration of alternative means to achieving the purpose of the project. Therefore, agencies are required to "rigorously explore and objectively evaluate all reasonable alternatives" to the proposed action. 40 C.F.R. 1502.14(a). The duty to consider alternatives applies to "all alternatives that appear reasonable and appropriate for study," DuBois v. U.S. Dep’t of Agriculture, 102 F.3d 1273, 1286 (1st Cir. 1996), and extends to significant alternatives presented by other agencies or the public. Seacoast Antipollution League v. Nuclear Regulatory Comm’n, 598 F.2d 1221, 1230 (1st Cir. 1979). An environmental impact statement is insufficient if it fails to fully study a reasonable alternative. Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 813-14 (9th Cir. 1999) ("A viable but unexamined alternative renders [the] environmental impact statement inadequate.").

MDOT’s refusal to fully explore reasonable alternatives to the proposed Petoskey Bypass alignments is contrary to the dictates of the National Environmental Policy Act (NEPA), 42 U.S.C. Sections 4321-4347. This law requires that as part of the SDEIS for Petoskey, MDOT study all reasonable alternatives. Moreover, MDOT’s position ignores the fact that local governments have stated a preference for studying alternatives such as Smart Roads: Petoskey, and a federal lawmaker has ensured that MDOT has sufficient funding and authority to evaluate and implement such local road options. MDOT’s unwillingness to consider locally supported, viable alternatives threatens to stall the 15-year process to relieve Petoskey-area traffic congestion.

A. Smart Roads: Petoskey is a Reasonable, Prudent, and Feasible AlternativeIn May 2000, the Michigan Land Use Institute proposed a reasonable, local road improvement alternative entitled Smart Roads: Petoskey. Smart Roads: Petoskey calls for connecting existing local roads in order to form a local road express route and an arterial grid around Petoskey. In addition, the Institute's proposal calls for upgrading intersections on US-31, signing a summer truck route, implementing a summer shuttle bus service, and using a number of innovative land use controls in order to limit development and access along the express route. The Smart Roads proposal offers a number of advantages over the two build alternatives forwarded in the SDEIS. For example, Smart Roads could be completed in a few years for approximately $10 million, as opposed to the $79-$90 million cost and 10-year construction time for MDOT’s build alternatives. Furthermore, the Smart Roads alternative would have significantly less environmental impacts than either of the build alternatives, and would better respect the character of the scenic and historic countryside in Resort and Bear Creek townships.

Unfortunately, MDOT dismissed Smart Roads without performing any detailed analysis of that alternative. (SDEIS, p.3-23) This failure to fully study and advance Smart Roads is incorrect for a number of reasons.

Smart Roads Meets the Goals of the Project The primary reason that MDOT should have advanced Smart Roads: Petoskey is that it meets the purpose and need and project goals of the SDEIS considerably better than the two build alternatives do.

With regards to traffic improvements, Smart Roads would relieve traffic congestion along US-31 by upgrading the arterial grid of local roads in the Petoskey area. In fact, by relying on local roads, Smart Roads may actually reduce more traffic than either build alternative for three reasons. First, as a local road alternative, Smart Roads directly addresses the trend in Petoskey of an increase in local traffic by enabling local residents to travel within Petoskey better than a controlled access bypass would. Second, by spreading traffic over a number of local roads, and controlling development along those roads, Smart Roads will avoid the congestion at intersections that is likely to accompany the build alternatives. It is interesting to note on this point that the SDEIS does not mention what the LOS for the intersections along the build alternatives will be. Perhaps this is because significant traffic problems are likely at those intersections as commercial development grows around those intersections. Third, by relying mainly on existing roads where people already live, Smart Roads will not induce nearly as much traffic as a new bypass through an area that is largely undeveloped at the present time.

Smart Roads also meets the other land use and national demonstration goals set forth in the SDEIS, which, as described above, the build alternatives do not even attempt to satisfy. For example, consistent with the second goal in the SDEIS, Smart Roads will protect the economic vitality of downtown Petoskey because it will not encourage sprawl. As recommended by the SDEIS, Smart Roads includes a number of innovative land use planning tools. These tools, combined with the smaller scale of the Smart Roads proposal, will help deter the big box commercial development that would threaten downtown businesses. Smart Roads is also consistent with the fourth goal of the SDEIS in that Smart Roads relies on local, two-lane roads and therefore remains consistent with the rural nature of Bear Creek and Resort townships. Finally, by reducing traffic while also meeting the second and fourth goals, Smart Roads would "serve as a demonstration to other communities" of a way to solve transportation problems without creating the sprawling development and increased traffic that has occurred in so many other towns across the United States.

Institute Has Provided MDOT with Early, Detailed Information on Smart Roads: PetoskeyThroughout the process of developing Smart Roads: Petoskey, the Institute kept MDOT well informed of our efforts with New Alternatives and the public so as to allow MDOT the earliest and fullest possible opportunity to review and study information concerning this alternative. In early 1999, representatives of the Institute and New Alternatives arranged to meet with MDOT’s then-Petoskey project manager Dave Geiger, and Jeff Saxby, then the project engineer. In that meeting, we explained our Petoskey project work plan and goals and requested MDOT’s assistance in providing transportation data necessary to develop our alternative. In addition, the Institute pledged to keep MDOT informed of our progress.

Since then, we have provided MDOT with our full reports and report summaries each time the Institute and New Alternatives completed a phase of the Smart Roads: Petoskey project. Our project timeline to date:

In June 2000, we provided MDOT with copies of the completed "Smart Roads: Petoskey" alternative (full report and report summary) and specifically requested that MDOT fully evaluate this alternative as a part of the ongoing SDEIS.B. MDOT’s Reasons for Rejecting Smart Roads: Petoskey are Unsupported by the SDEIS and Incorrect as a Matter of LawThe primary reason MDOT gives for rejecting Smart Roads: Petoskey is that it is purportedly quite similar to an "Optimized Local Roads Improvement Alternative" (LRIA) developed by MDOT, which MDOT ultimately concluded did not divert sufficient traffic from US-31 to be effective. In essence, MDOT developed an alternative based solely on the upgrade and connection of a set of local roads. Then, MDOT ran traffic models on the LRIA and found that it did not meet the SDEIS’s purpose and need. MDOT then looked at Smart Roads: Petoskey, perceived it to be quite similar to the LRIA, and therefore rejected Smart Roads without any further analysis.

The problem with MDOT’s analysis is that Smart Roads: Petoskey is substantively different from the LRIA. A number of courts have noted that an agency need not analyze an alternative that is not "significantly distinguishable" from an alternative that has already been considered. Sierra Club v. Dombeck, 161 F. Supp. 2d 1052, 1068 (D. Ariz. 2001); Surfrider Foundation v. Dalton, 989 F. Supp. 1309, 1327 (S.D. Calif. 1998); Island Range Chapter of the Montana Wilderness v. U.S. Forest Serv., 45 F. Supp. 2d 1010 (D. Mont. 1996).

While MDOT correctly perceives that Smart Roads and the LRIA both involve the improvement of some of the same local roads, that is where the similarities end. A more thorough analysis of Smart Roads than that engaged in by MDOT reveals that Smart Roads is significantly distinguishable from the LRIA. For example, Smart Roads connects a number of local roads to create one continuous express route from one end of Petoskey to the other. The LRIA does not do this; with the LRIA a driver would have to make at least four stops and then 90-degree turns to get from one side of Petoskey to the other.

Second, Smart Roads uses innovative land use controls and access management policies to control development along its routes. Transportation and land use are inherently linked and, therefore, such land use controls will help ensure that the local roads do not become congested as the result of development. The LRIA, however, does not provide for land use control or access management. Finally, Smart Roads helps to decrease summer traffic by signing a summer truck route around Petoskey and employing a summer shuttle bus service, two actions not employed in the LRIA alternative. MDOT Strays from Purpose and Need to Dismiss Smart Roads: PetoskeyMDOT also has said publicly that Smart Roads: Petoskey was dismissed summarily because it does not meet their desire to build a state trunkline highway. The purpose and need section of the SDEIS, however, does not contain any reference to a mandate to build a state trunkline highway. In fact, 1996 federal legislation specific to the Petoskey Area Improvement Project explicitly allows MDOT to study and spend federal money on local roads. Further undermining MDOT’s thin reasoning for dismissing Smart Roads: Petoskey is the fact that Smart Roads is conceived of and proposed to be built to state standards.

On April 11, 2001, Bear Creek and Resort Townships held a joint meeting to discuss the Petoskey Bypass and alternatives to the bypass. At the meeting, both townships asked MDOT whether it was studying Smart Roads: Petoskey. Then-MDOT Petoskey project engineer Jeff Saxby said the department has not studied Smart Roads: Petoskey because it does not meet the project’s goal of building a state trunkline highway.

Mr. Saxby’s response disappointed many local officials and residents gathered at the April 11 joint township meeting. A member of the Bear Creek Township board expressed "great concern" that MDOT is pressing forward with a four-lane bypass through Bear Creek Township, while ignoring the two-lane Smart Roads approach. The board member noted that the agreement reached in 1998 among Bear Creek and Resort Townships and the City of Petoskey explicitly calls for a two-lane road and a land conservation plan. The Bear Creek board member went on to say that MDOT should adopt the "best parts" of Smart Roads: Petoskey, including the two-lane profile, the improvements to U.S. 31, and the land protection program.

Two Resort Township board members also asked why MDOT has not fully considered Smart Roads: Petoskey. In response to these questions, Mr. Saxby said that the Emmet County Road Commission, not MDOT, is the appropriate agency to evaluate local road options such as Smart Roads: Petoskey. Mr. Saxby also said that MDOT’s ability to protect land along a bypass route is limited to buying access rights. Mr. Saxby expressed the opinion that other land protection efforts are beyond MDOT’s reach and, thus, cannot be studied as part of the Petoskey Bypass SDEIS.

Several meeting attendees also questioned why MDOT was ignoring Smart Roads: Petoskey. Some made the point that several resolutions of support for Smart Roads have been passed locally, including by Resort Township, the city of Harbor Springs, and several homeowner groups. (See Appendix, Item No. 5.)

MDOT Incorrectly Asserts that It Cannot Consider Local Road Improvements or Land Use Controls because They are Outside its JurisdictionAt a number of places throughout the SDEIS, MDOT asserts that it cannot study local road improvements or the land use controls because such activities are outside MDOT’s jurisdiction. For example, MDOT suggests that it need not study a local road improvement alternative because local road improvement is the job of the Emmet County Road Commission. (SDEIS, p. 2-2.) Similarly, MDOT claims to support the land use control measures proposed by the Michigan Land Use Institute, but MDOT’s analysis of those measures consists solely of the statement that "local support would be needed to implement these measures." (SDEIS, p. 5-76)

MDOT’s claim that it need not study alternatives outside its jurisdiction is incorrect as a matter of law. Council on Environmental Quality regulations provide that the consideration of alternatives should "include reasonable alternatives not within the jurisdiction of the lead agency." 42 C.F.R. 1502.14(c). Numerous courts have enforced this requirement that an agency consider alternatives outside its jurisdiction. See, e.g., Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 814 (9th Cir. 1999); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972).

Where an alternative is outside an agency’s jurisdiction, it is still reasonable and therefore must be studied if the implementation of that alternative is ascertainable and within reach. City of Angoon v. Hodel, 803 F.2d 1016, 1021-22 (9th Cir. 1986). Both the improvement of local roads and the enactment of land use controls meet this standard. While it may be true that MDOT’s staff cannot perform a full evaluation of land protection options, the department has the legal responsibility to see that the work is done, including contracting with land protection experts.

The city of Petoskey, and Resort and Bear Creek townships during the last several years have taken a series of actions together that clearly indicate their desire – and lay the groundwork – for the protection of open space, agricultural land, and natural features in the context of any major new development proposal, specifically including new road construction.

In January1998, the city of Petoskey, and Resort and Bear Creek townships jointly signed a resolution calling for MDOT to consider and study a new alignment for a bypass – the alignment referred to in the SDEIS as "Intertown-South." The Emmet County Board of Commissioners later signed the agreement as well. (See Appendix, Item No. 6.) What’s relevant is that the resolution called for a series of land protection and design elements to be included in the development of the Intertown-South alternative. Among those elements were:

"Creating a scenic parkway that would include protection and enhancement of natural and cultural features, and adding of landscaping with consideration for the potential development of adjacent park land and open space for the preservation and development of such features."

"Utilizing conservation easements or purchase of development rights to maintain rural character and protect roadway capacities in strategic locations."

"Developing a non-motorized trail serving the entire length of the proposed facility."

"Considering the possible designation of the proposed facility as a Heritage Route."

Without exception, MDOT’s SDEIS has failed to study these concepts and assess their feasibility, despite the full support of the four local units of government.

In the fall of 2001, the city of Petoskey, and Resort and Bear Creek Townships took it upon themselves to form a joint open space protection task force, whose first task is planning for land use preservation and enhancement along any new roadway. (See Appendix, Item No. 7 ) The task force has begun systematically examining the land protection and design elements that the local governments have asked and expected MDOT to study. The task force currently is discussing raising local taxes – particularly notable during a state and national recession – to buy development rights to parcels along a bypass, if one is constructed. This commitment to land protection among local governments further demonstrates the extent to which MDOT’s build alternatives are in conflict with local plans and actions.

C. Federal Law Does Not Require MDOT to Build a Four-Lane BypassFaced with mounting opposition to its build alternatives and increasing support for a two-lane local road alternative, MDOT has recently taken to arguing that its hands are tied by federal highway design standard requirements that MDOT so far has refused to identify. According to MDOT, federal law requires it to build a highway of sufficient capacity to handle 20-year projected traffic levels. MDOT reads this requirement as compelling it to build a four-lane bypass.

Leaving aside for now the faulty nature of MDOT’s traffic projections, MDOT’s claim is incorrect for two reasons. First, Congress has specifically authorized MDOT to study the upgrading of local roads in the Petoskey project, with an amendment to the original bypass earmark that inserted the words, "or upgrade existing local roads." Act of Sept. 30, 1996, Pub. L. No. 104-205, Sec. 406, 110 Stat. 2951, 2982. This specific Congressional authorization for the study of local road alternatives undermines MDOT’s claim that federal law requires it to construct a four-lane bypass. (See Appendix, Item No. 8)

Second, MDOT’s argument appears to conflict with the fact that over the past 10 years the federal government has permitted and encouraged increasing flexibility in highway design. Through the concept of context-sensitive design, the federal government has rejected the one-size-fits-all solutions of the past and instead endorsed the use of flexible designs to ensure that roads fit in with the environmental, historical, scenic, aesthetic, and community values of the area. Congress first recognized the context-sensitive design concept in the Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, 105 Stat. 1914. Section 1016 of that Act provided that:

"if a proposed project . . . involves a historic facility or is located in an area of historic or scenic value, the Secretary may approve such project notwithstanding [other applicable design standards] if such project is designed to standards that allow for the preservation of such historic or scenic values and such project is designed with mitigation measures to allow preservation of such value and ensure safe use of the facility."

Congress extended the context-sensitive design concept even further through the 1995 National Highway System Designation Act, Pub. L. 104-59, 109 Stat. 568. That Act served to expand the list of factors that could be taken in to consideration in the design of the National Highway System. In addition to the traditional factors of future traffic, safety, durability, and economy of maintenance, the 1995 Act permits the consideration of "the constructed and natural environment of the area," and "the environmental, scenic, aesthetic, historic, community, and preservation impacts of the activity." 23 U.S.C. § 109(c)(1). Additionally, the Federal Highway Administration specifically endorsed the context-sensitive design approach in its 1997 publication entitled Flexibility in Highway Design (FHWA Pub. No. FHWA-PD-97-062).

Context-sensitive design could provide MDOT significant flexibility in the Petoskey project. Two-lane local road alternatives clearly match the environmental, historic, aesthetic, scenic and community values of the Petoskey area better than a four-lane bypass that is, in part, the size of Interstate-75. MDOT’s assertion that it must build a four-lane highway, therefore, appears inconsistent with the increased flexibility permitted by the context-sensitive design approach now taken by the federal government.D. Congress, Local Governments, and the Public All Recognize a Two-Lane Local Roads Option as a Reasonable Alternative For the Petoskey Bypass Project.MDOT’s insistence on a four-lane highway design and its dismissal of two-lane local road alternatives is especially improper given the fact that Congress has specifically identified local road improvements as an alternative for the Petoskey project. In analyzing the consideration of alternatives in an EIS, Congressional actions serve as a "pertinent guide" for determining what alternatives should be studied. City of New York v. State of New York, 715 F.2d 732, 743 (2nd Cir. 1983).

In this case, after MDOT issued its SDEIS in 1994 and public opposition mounted to the building of a four-lane bypass around Petoskey, Congressman Bart Stupak amended the statutory grant of authority for the Petoskey project to include the option to "upgrade existing local roads." Act of Sept. 30, 1996, Pub. L. No. 104-205, Sec. 406, 110 Stat. 2951, 2982. This amendment undermines any claim by MDOT that it cannot study local roads because they are outside its jurisdiction or because federal law prevents it from doing so. Instead, this enactment provides a clear statement from Congress that local road improvements should be fully and fairly studied. MDOT’s summary dismissal of Smart Roads does not fulfill this duty. Strong Public Interest in the Study of Smart Roads: PetoskeyThe public has a strong interest in the Smart Roads: Petoskey alternative and a full and fair study of it by MDOT. This interest has been clearly demonstrated by the number of local groups and governments that have passed resolutions of support for the "Smart Roads: Petoskey" alternative and a full evaluation of it by MDOT, including the Wequetonsing Association on August 14, 2000, the L’Arbre Croche Club on Sept. 1, 2000, the Menonaqua Beach Cottage Owners Assoc. on Sept. 2, 2000, the city of Harbor Springs on Sept. 18, 2000, and Resort Township on October 3, 2000.

Dozens of Emmet County households also have expressed their interest in "Smart Roads: Petoskey" by joining the Institute during the development of this alternative. Clearly, the community’s interests and the goals of NEPA are best served if MDOT conducts a full and fair study of what might prove to be a superior alternative and if MDOT presents the public with a comparative analysis of the environmental impacts of all of the reasonable alternatives.

Moreover, in August 2001 Resort Township hired a consultant to craft and conduct a mail survey of all township residents about issues related to the township’s future, including the proposed highway bypass. The survey garnered a response from 64 percent of residents. Of Resort Township property owners responding, 64 percent (not to be confused with the earlier percentage) opposed development of the bypass and 36 percent supported it. Local road improvements by far received the most support from those in the township responding to the survey, with a 44 percent plurality supporting a local-roads option and the next highest support going to the 4-lane beltway, with 19 percent. While the survey did not ask specifically about support for Smart Roads: Petoskey, residents did express greatest support for upgrading local roads, which is at the heart of the Smart Roads approach and not a facet of the SDEIS build alternatives.

E. MDOT Has Improperly Suggested That It Might Study Smart Roads: Petoskey More Completely in the FEISPerhaps realizing that Smart Roads: Petoskey is a feasible and prudent alternative that it must study in order to fulfill its duties under NEPA, MDOT officials have suggested in a phone conversation with MLUI on December 1, 2000, that it might conduct a more thorough analysis of Smart Roads: Petoskey in the Final EIS.

As MLUI informed MDOT in a December 20, 2000, letter, delaying the study of Smart Roads is clearly inappropriate. The Institute and ELPC then requested and received a meeting with FHWA and MDOT on June 21, 2001. At the meeting MDOT and FHWA made clear that the forthcoming SDEIS would not contain a study nor traffic modeling of Smart Roads: Petoskey, primarily because of FHWA and MDOT’s belief that studying the Optimized Local Roads Improvement Alternative is enough for the road agencies to determine that Smart Roads: Petoskey would not meet project goals. Despite our raising early and repeated concerns about this matter, MDOT published an SDEIS in August 2001 that does not fully and fairly evaluate Smart Roads: Petoskey.

As the Council on Environmental Quality’s NEPA regulations recognize, NEPA is designed to "insure that environmental information is available to public officials and citizens before decisions are made and actions are taken." 40 C.F.R. 1500.1(b). Such timely provision of information enables the public to be fully aware of the alternatives available and allows the public to comment on those alternatives.

Delay of the consideration of Smart Roads: Petoskey to the FEIS would undercut this public information purpose of NEPA. Interested members of the public would not be provided with information comparing the impacts of Smart Roads with the other alternatives until MDOT has already made its final selection of the alternative it wishes to pursue. Furthermore, citizens and other government agencies would be deprived of the chance to evaluate and offer comments on this alternative until MDOT had already made up its mind. Finally, while MDOT is required to respond to comments received on a Draft EIS, 40 C.F.R. 1503.4, it need not respond to any comments received on a Final EIS.

Therefore, by delaying consideration of Smart Roads until a Final EIS, MDOT would avoid having to respond to any comments about the comparative impacts of Smart Roads and other alternatives.

Moreover, MDOT normally holds a public hearing after release of a DEIS or SDEIS. In contrast, MDOT does not typically hold a public hearing after releasing a FEIS, and the NEPA regulations do not require that an agency respond to comments submitted on the FEIS. Thus, by purposely delaying the study of a reasonable alternative until the FEIS, MDOT would thwart the public involvement process and avoid any opportunity for it to optimize and modify this alternative in response to public comment. Likewise, by refusing to study and document the comparative impacts and benefits of Smart Roads: Petoskey in the SDEIS, MDOT is denying the federal agencies involved in this NEPA process an early opportunity to evaluate and offer comments on the impacts of this alternative.

Study of Smart Roads: Petoskey Must be Iterative In a regional bypass project with similarities to the Petoskey proposal, the U.S. Environmental Protection Agency (in an Aug. 10, 1999 letter regarding the Boardman River Crossing Mobility Study in Grand Traverse County, Michigan) notified MDOT that the study of alternatives in an EIS must be "iterative." EPA also wrote that MDOT is responsible for ensuring that alternatives are "modified" and "optimized" over time. EPA’s guidance applies to the Petoskey Area Improvement Study. The iterative process called for by the EPA can occur only if all alternatives are considered during the DEIS/SDEIS phase, so that modifications and iterations of alternatives can occur during the preparation of the FEIS.

NEPA ThwartedIn summary, the Institute and ELPC find that the SDEIS fails to satisfy the requirements of NEPA by refusing to fully and fairly study Smart Roads: Petoskey in the SDEIS, including the failure to seek to optimize Smart Roads and combine it with other promising concepts and elements. It is crucial that MDOT study Smart Roads: Petoskey, as well as other local roads concepts and combinations of ideas, during the DEIS/SDEIS in order to fully involve the public and best meet project goals while minimizing financial cost and harm to the environment.F. MDOT Uses a Flawed Traffic Model to Analyze the Two Build AlternativesIn addition to advancing alternatives that do not meet the goals of the project, MDOT has also relied on flawed traffic models for its analysis of the various alternatives discussed in the SDEIS. As transportation planner Rick Kuner discusses in his attached analysis that is submitted as part of the present comments, MDOT’s conclusions regarding future traffic demand and the efficacy of the build alternatives are most likely inaccurate because they are based on faulty modeling analysis. For example, many of the travel analysis zones used by MDOT are too large and the trip generation rates appear to be based on 30-year old data. Such flaws in the traffic model lead to clearly incorrect results, including poor results of the calibration of the model to actual 1990 traffic levels and a finding that Intertown Road will have zero traffic on it in the year 2020 even though there are over 40 houses on that road. These flaws undermine the credibility of MDOT’s traffic analysis and make MDOT’s conclusions regarding its build alternatives unsupported by the study. For a detailed discussion, of the traffic modeling flaws, please see the attached comment from New Alternatives, Inc.

G. The SDEIS Makes No Reference to the Effects of Induced Travel DemandThe construction of highways actually can be somewhat counterproductive for solving traffic problems because new and wider highways can create more traffic by inducing people to drive when they otherwise would not. This phenomena, known as induced travel demand, has been recognized by courts. See, e.g., Swain v. Brinegar, 517 F.2d 766, 777 (7th Cir. 1975) ("highways often create demands for travel and expansion by their very existence"); North Carolina Alliance for Transp. Reform, Inc. v. U.S. Dep’t of Transp., 151 F. Supp. 2d 661, 690-61 (M.D. N.C. 2001); Sierra Club v. U.S. Dep’t of Transp., 962 F. Supp. 1037, 1043 (N.D. Ill. 1997).

The SDEIS does not address whether or not induced travel demand has been factored in to its analysis. If MDOT failed to consider induced travel demand, then its traffic analysis is flawed because it failed to consider the additional traffic that would likely be created by the build alternatives. Furthermore, the four-lane bypass alternatives advanced by MDOT would likely induce more travel than alternatives that rely on improving existing local roads. Therefore, any failure to factor in induced travel demand may have skewed the SDEIS in favor of the four-lane bypass alternatives over local road alternatives.

3.ENVIRONMENTAL DESTRUCTION

Because MDOT refuses to consider less that a four-lane road design, summarily rejects Smart Roads: Petoskey, and wholly ignores significant land protection concepts, MDOT’s proposed bypass is needlessly destructive of the natural environment. The build alternatives would destroy 21-23 acres of wetlands, 110 acres of farmland, and 50 acres of forest. Moreover, in its formal comment on the SDEIS, the Tip of the Mitt Watershed Council – the region’s pre-eminent water resource protection group for the last 21 years – calls this the most destructive proposed project to water resources that the organization has encountered.

In addition, the proposed four-lane highway would be a major generator of changes in land uses by directly dividing and paving farms in an area noted for its significant historic agricultural heritage. Secondary impacts would include the sprawl that is certain to spread out along the proposed 4-lane bypass and at the 10-13 at-grade intersections with local roads.

MDOT Has Failed to Take the Required "Hard Look" at the Environmental Consequences of All Reasonable Alternatives, as Required by NEPAAs part of the NEPA process, MDOT is required to take a "hard look" at the environmental consequences of its proposed action. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). The discussion of environmental impacts is designed to provide a "scientific and analytical basis" for comparing the various alternatives for achieving the agency’s goals. 40 C.F.R. 1502.16; DuBois v. U.S. Dep’t of Agriculture, 102 F.3d 1273, 1286 (1st Cir. 1996). A proper analysis of the alternatives, therefore, can be carried out only if the agency provides a complete and accurate compilation of the environmental consequences of all reasonable alternatives. Unfortunately, MDOT has not fulfilled this requirement in the SDEIS.

A. MDOT Improperly Failed To Consider the Environmental Consequences of Smart Roads: Petoskey, an Alternative That Would Have Significantly Less Environmental Impact than Either of the Build AlternativesA fundamental flaw in the environmental consequences section of the SDEIS is that it contains absolutely no discussion of the Smart Roads: Petoskey alternative. As explained above, Smart Roads: Petoskey is a reasonable alternative and, therefore, MDOT should have analyzed its environmental impacts. MDOT’s failure to perform such an analysis prevents the decision-makers and public from seeing a complete comparative analysis of the alternatives.

As set forth in the May 2000 report on Smart Roads: Petoskey prepared by New Alternatives, Inc., it is plainly evident that the Smart Roads alternative would have a significantly lesser impact on the environment than the build alternatives. This is true for four primary reasons. First, because Smart Roads relies largely on existing local roads, it would require the construction of only 4.9 miles of new roads, while MDOT’s build alternatives involve approximately 10 miles of new road construction. Second, by spreading traffic over an arterial grid, Smart Roads is able to use two-lane roads with 66-foot right of ways, while the build alternatives use 3- to 4-lane roads with 200- to 300-foot right of ways. Third, unlike the build alternatives, Smart Roads would not require the realignment of existing local roads and would not create landlocked parcels. Finally, unlike the build alternatives, Smart Roads includes a series of land use protections.

Because of these differences, Smart Roads will have significantly less environmental impacts that the build alternatives. For example, the Far-South build alternative would lead to the destruction of 23.6 acres of wetlands, 48.9 acres of forest, and 110 acres of active farmland. (SDEIS, Table 1.3-1) The Intertown-South Alternative would destroy 21.4 acres of wetlands, 54.1 acres of forest, and 107 acres of active farmland. (SDEIS, Table 1.3-1) With its smaller right-of-way and need for less new road construction, the Smart Roads: Petoskey alternative would undeniably have fewer impacts on wetlands, forest, and active farmland than either of the build alternatives would.

Similarly, MDOT acknowledges that the build alternatives would have substantial effects on surficial geology due to the significant amount of cut-and-fill activity necessary for placing a three-to-four lane highway through the hilly rural area south of Petoskey. The two-lane, 66-foot right-of-way roads employed in the Smart Roads alternatives are more consistent with the hilly character of the area and therefore would not require nearly as much cut-and-fill.

Finally, MDOT anticipates major development along the proposed routes of the build alternatives, especially near intersections and in the 361 acres (Far South Alternative) to 448 acres (Intertown-South Alternative) of land that would become landlocked by the build alternatives. (SDEIS 5-69 to 5-71) Such secondary development would have additional impacts on the environment, displacing farmland and open space, and destroying more acres of wetlands and forest. Smart Roads: Petoskey, however, would avoid most of this secondary development because it does not create landlocked parcels and because it includes a number of land use control measures that will help discourage the sprawl that often accompanies new roads.

B. The SDEIS Does Not Adequately Analyze the Environmental Consequences of the Build Alternatives on Water ResourcesMDOT’s SDEIS is grossly incomplete in its inventorying and description of the presence and state of local water resources. Appendix A of the SDEIS fails to accurately depict the region’s water resources that would be affected by any new road construction. For example, Appendix A fails to show many of the surface water features of the relatively undisturbed Tannery Creek Watershed.

MDOT’s Intertown-South bypass proposal would have substantial impact on the headwaters of Schoofs Creek, the major tributary of the North Arm of Walloon Lake. For instance, this alignment would result in the leveling of drumlins that provide groundwater recharge to the headwater wetland and streams of Schoofs Creek. This is not accounted for in the SDEIS. Nor does the study contain a wetland mitigation plan for the loss of wetland function that would occur in the Schoofs Creek watershed.

In addition, either of MDOT’s build alternatives would remove significant vegetation along the Bear River, allowing significant runoff of sediment and auto-related pollution while local groups work actively to restore the river’s water quality. The Bear River watershed is known to be one of Emmet County’s most intact ecological corridors and would be fragmented by the build alternatives. It contains wetland dependent bird species such as the Wood Duck, Green heron, Osprey, Kingfisher, Bald eagle, and the Great blue heron.

MDOT’s build alternatives also would destroy significant wetland acreage in the Tannery Creek watershed by proposing to build a four-lane highway. These wetlands are largely undisturbed and its watershed is not marked by significant amounts of impervious surfaces to date.

4. INCONSISTENCY WITH LOCAL LAND USE PLANSA stated goal of the SDEIS is to "maintain compatibility with existing land use patterns and complement future land use master plans." MDOT’s proposed build alternatives do not meet, and in fact conflict with, local plans and expectations for the design of future transportation improvements and the resulting impact to the landscape.

Both recommended build alternatives propose a new beltway that will be up to four lanes wide, with rights of way up to 300 feet, and design speeds up to 60 miles per hour. The proposed alternatives would cut through lands that currently are rural agricultural and low-density residential. This scale of roadway in Emmet County is currently found only where Interstate-75 passes through the northeast corner of the county. It is implausible that a transportation project of this scale could be considered compatible with the existing rural residential and agricultural land use patterns.

A detailed review of the local communities’ master planning documents reveals an overriding desire to protect and maintain the rural character of the region, and guide future development into existing urbanized areas. There is virtually no discussion in the SDEIS that indicates how the build alternatives would complement future land use plans.

Below is a summary of goals and expectations of the three planning documents adopted for the Petoskey area. The plans include the Emmet County/ City of Petoskey Comprehensive Plan, the Bear Creek Township Master Plan and the Resort Township Comprehensive Plan.

A. Summary of Emmet County/ City of Petoskey Comprehensive Plan (1997) The County/ City Plan describes local expectations of transportation improvements from MDOT (p 4-6):

Acts as a demonstration project that proposes innovative and creative solutions

Utilize two-lane construction, which has less impact on wetlands, farmlands, and rural land features.

In addition, the County/ City Plan summarized a vision for future land use as follows (p. 6-2):

" Future growth and development will occur predominantly in/ or near existing cities, villages and in rural clusters. Existing agricultural lands and forest lands are planned to remain in production. Commercial and industrial development will be located in planned centers with adequate support services. Public park lands will be improved and expanded. Development in rural areas will be guided to form rural clusters to maximize the retention of open space".

The County/ City Plan identifies a proposed beltway route that incorporates many of the elements and expectations listed above. Neither Build Alternative matches the specific proposed beltway route in the County/ City Plan. The recommended Build Alternatives address very few of those expectations identified in the City/ County Plan.

B. Summary of Bear Creek Township Master Plan (1998) Goals:The goals of the Bear Creek Township Master Plan are generally consistent and compatible with the goals of the Emmet County/ City of Petoskey Comprehensive Plan. Below is a summary of the township’s Community Goals that apply directly to the proposed project (p.68):

"Guide new development in a manner that conserves natural features and environmentally sensitive areas and meets long-term needs of the community

Foster scenic and recreational opportunities that meet the needs of residents

… Encourage development where infrastructure currently exists."

The township further identified specific objectives and strategies to help achieve those goals, related to specific community issues. The following is a selection of objectives and strategies that specifically relate to the goals of the MDOT study:

Environmental Features (p. 69): Encourage the retention of productive agricultural and forest lands through available mechanisms such as open space and farmland agreements, forest stewardship programs, and conservation easements, as well as local zoning incentives.

Commercial Land Use (p. 71): Recognize the City of Petoskey as a business center serving both the local consumer population and subregional market.Encourage commercial development in locations where compact and coordinated development can occur without impacting residential land uses.Discourage strip commercial development and isolated commercial uses.

The township Future Land Use Plan recommendations did not specifically address transportation improvements, but as part of its discussion of land uses, identified the following concern regarding commercial uses along US-31:

(p. 83) "Excessive curb cuts exist along portions of US 31 and US 131 and therefore, the use of marginal access drives is encouraged to improve traffic patterns and to assist in the maneuverability of vehicles between sites by limiting the number of turning cars from the main road."

Bear Creek Township’s Master Plan indicates that the township asked MDOT to study an alternative now labeled as Intertown South. It was "developed … with concern for the farmland and historic sites which may be disrupted." MDOT has included this alternative as a build alternative but, to date, Bear Creek has not endorsed the plan.

The Township Master Plan does not provide any background discussion or indication of support for this alternative, other than a desire that MDOT study it. Because of its direct impact on existing agricultural lands, the Intertown South Alternative does not appear to meet the goals and strategies identified in the Bear Creek Master Plan as well as a local roads option such as Smart Roads: Petoskey. The Smart Roads: Petoskey plan would utilize access controls to discourage strip commercial development, but also would protect environmentally sensitive lands (including agriculture), and utilize existing transportation infrastructure.

C. Summary of Resort Township Comprehensive Plan The Resort Township Plan is unequivocal in its opposition to any new beltway around Petoskey through the township. The plan states:

"The proposed far south route will have significant negative impacts on prime, unique and locally important farmland in the Township and is inconsistent with the Township’s stated goal of preserving agricultural resources and the Township’s rural character. Impacts to agricultural resources will occur both in terms of land taken for the beltway project and the division of agricultural parcels creating access and farm management difficulties. Other existing land uses and natural resources which will be impacted by the beltway include wetland, forest land, open non-forested land and other conservation lands, as well as residential property. Secondary impacts due to induced development adjacent to the new route will likely be significant. The location of the beltway through these natural resources will negatively impact the rural character of the Township and is inconsistent with the goals and policies of this Plan."

Further, the plan states that the "Board of Trustees unanimously passed a resolution to fully oppose the location of a highway by-pass within the borders of Resort Township…. The township has vowed to take whatever action is necessary to oppose any other route."

The Plan further includes considerable goals and policies related to future development along the existing US-31 corridor. The emphasis of the Plan was on maintaining rural community character by controlling the visual impact of development, as well as improving safety on the roadway by controlling access from adjacent properties.

It is clear that neither of MDOT’s proposed build alternatives will be compatible with Resort Township’s Comprehensive Plan.

Each of the three community plans recognized MDOT’s intention to build a beltway around the Petoskey, but there is no clear consensus of how, where or what type of project would complement future land use plans. However, there is general consensus to preserve agricultural lands and rural character, while concentrating new development in areas with existing infrastructure. Both Build Alternatives conflict with that general goal by severing agricultural lands and moving traffic circulation well outside of the area of existing infrastructure.D. Conclusion: A Failure to Complement Local Master PlansIn conclusion, the SDEIS provides virtually no discussion about how the proposed project will support community land use plans and goals. Other than a stated commitment to control access by prohibiting driveways to adjacent private property, the study makes no mention of how the project will help advance local community goals of directing future growth and development in or near existing cities and preserving the region’s extensive agricultural lands.

Unlike MDOT, local communities place a high priority on preserving their natural and agricultural heritage. The city of Petoskey, and Resort and Bear Creek Townships in the fall of 2001 formed a joint open space protection task force, whose first task is planning for land use preservation and enhancement along any new roadway. The task force currently is discussing raising local taxes – particularly notable during a state and national recession – to buy development rights to parcels along a bypass, if one is constructed. This commitment to land protection among local governments further demonstrates the extent to which MDOT’s build alternatives are in conflict with local plans and actions.

5. STRONG PUBLIC OPPOSITION TO A FOUR-LANE BYPASSMuch of the public in Emmet County opposes MDOT’s proposed four-lane bypass, the state representative for the region in February declared the project dead, and Resort Township voted in February to oppose the build alternatives. A January 2002 letter from the director of MDOT to a state representative said MDOT will withdraw from the project if local consensus is not obtained. Moreover, MDOT states in the SDEIS that "strong public opposition" is grounds for dismissal of an alternative. (SDEIS, p. 3-1) Therefore, MDOT’s build alternatives proposed to date should be dismissed. In addition, rather than fairly solicit the public feedback, however, MDOT has actively worked to minimize and dilute public input.A. Resort Township and Its Residents Oppose Four-lane BypassOn February 26, 2002, Resort Township voted 4-0 to formally oppose the MDOT build alternatives presented in the SDEIS. The action comes after the government of Resort Township, in August 2001, hired a consultant to survey by mail all of its residents. The survey received a 64-percent response rate among township residents. Of township property owners responding, 64 percent (not to be confused with the earlier percentage) opposed development of the bypass and 36 percent supported it. Local road improvements by far received the most support from those in the township responding to the survey, with a 44 percent plurality supporting it and the next highest support going to the 4-lane beltway, with 19 percent. In October 2000, the government in Resort Township passed a resolution calling for MDOT to study Smart Roads: Petoskey as an alternative to a 4-lane highway.

In January 1998, the city of Petoskey, and the governments of Resort and Bear Creek townships passed a joint resolution calling for a 2-lane highway and significant land protection, including purchase of development rights. The Emmet County government later signed the same resolution. The joint resolution remains in effect today.B. State and Federal Lawmakers Have Challenged the Build AlternativesOn January 31, 2002, Congressman Bart Stupak held a town hall meeting in the city of Petoskey to solicit public feedback on local issues. About 150 people attended and, with a show of hands, indicated that all but three opposed the MDOT build alternatives. Congressman Stupak himself went on to say that he personally thought that four lanes was too many for the bypass, and that it would divide the community literally and figuratively if built to that dimension. The congressman’s statement was particularly relevant because he controls the project’s federal funding, which is expected to be 80 percent of the total cost.

A few days later, State Rep. Scott Shackleton spoke at a Petoskey Regional Chamber of Commerce meeting and declared the bypass "dead." The state representative’s comment also was highly relevant because he is chair of the State House Transportation Appropriations Subcommittee, which controls MDOT’s budget, and thus the state’s share of any bypass funding. (See Appendix, Item No. 9)

In a January 16, 2002, letter from MDOT Director Gregory Rosine to State Rep. Scott Shackleton, Director Rosine said MDOT will withdraw from the project if local consensus is not obtained. (See Appendix, Item No. 10)

C. MDOT Failed to Provide Adequate Opportunities for, or Give Fair Consideration to, Public Input.Public input plays a critical function in the NEPA process because, through substantive consultation with the public, agency officials can gain valuable insight on the need for and alternatives to a road project. See, e.g., Coalition of Concerned Citizens Against I-670 v. Damian, 608 F. Supp. 110, 124-25 (S.D. Ohio 1984); Keith v. Volpe, 352 F. Supp. 1324, 1340 (C.D. Calif. 1972). Congress, therefore, included a number of provisions in NEPA to help ensure that the public can make substantive contributions during the EIS process. For example, under NEPA an agency must publish a draft EIS, hold a public hearing, accept and respond to comments on the draft EIS, and consider any reasonable alternatives offered by the public. NEPA’s public participation goal will be met, however, only if the agency supports the give-and-take of information and ideas with the public. Unfortunately, MDOT has shown a reluctance to accept public participation in this EIS process.

MDOT’s Public Open House Does Not Satisfy the Public Hearing RequirementA key step in the planning of any road project is the requirement that the agency hold a public hearing regarding the project. The public hearing requirement is recognized both in the Federal Highway Administration’s regulations implementing NEPA, 23 C.F.R. § 771.111(h), and a provision of the Federal-Aid Highway Act, 23 U.S.C. § 128(a). The public hearing provides a means for informing the public about a proposed project. The hearing, however, must be "more than a public presentation by the highway department of its plans and decisions." Coalition of Concerned Citizens Against I-670 v. Damien, 608 F. Supp. 110, 124 (S.D. Ohio 1984). Instead, the hearing must serve as a forum for the agency to "be directly and publicly confronted with opposing views" on the project so that the agency can make the best decision. D.C. Federation of Civic Ass’ns v. Volpe, 434 F.2d 436, 441 (D.C.Cir. 1970). Two courts, citing the legislative history of the Federal-Aid Highway Act, have suggested that a public hearing is "meant to be a town-hall type meeting" so that agency officials are publicly confronted with any opposing views. Coalition of Concerned Citizens Against I-670 v. Damien, 608 F. Supp. 110, 124 (S.D. Ohio 1984); see also Lathan v. Brinegar, 506 F.2d 677, 691 (9th Cir. 1974); City of South Pasadena v. Slater, 56 F. Supp. 2d 1106, 1132 (S.D. Cal. 1999) (noting that "the plaintiffs have raised serious questions about whether the format of an open house is the equivalent of a public hearing.").

In December 2001, MDOT held an open house style public hearing that did not meet the public hearing requirements described above. Despite the written and verbal requests of numerous interested parties, including a written request from Bear Creek Township and another from the Michigan land Use Institute for a town hall-type public hearing, MDOT refused to devote any of the five hours of its public hearing to a town hall-style meeting. MDOT provided no opportunity for citizens to publicly confront agency officials with their views or for the public to learn about each other’s ideas, thoughts, or comments. Instead, MDOT’s open house consisted solely of displays explaining various aspects of the alternatives proposed by MDOT, with agency representatives and consultants available to explain the project to citizens on a one-to-one basis. Rather than a public airing of views regarding the Petoskey project, MDOT’s open house represented little more than a glorified sales pitch of the two build alternatives.

MDOT’s public hearing was also marred by misinformation regarding the deadline for public comments. While MDOT had extended the public comment deadline until February 28, 2002, the public comment sheets handed out at the hearing listed a deadline of January 15, 2001 – which was the incorrect date and year! In fact, some MDOT officials still were verbally providing the incorrect comment deadline an hour-and-a-half into the hearing. The only notice found at the hearing regarding the extension was a quickly scrawled note attached to the entrance table at below-waist level. (See Appendix, Item No. 11)

MDOT Frequently Gave Short Shrift to the Input of Public Interest Groups Such as the Michigan Land Use InstituteOne of the key reasons that NEPA requires agencies to provide information about a proposal to the public is so that interested individuals and organizations can provide feedback to the agency regarding the proposal. Through this give-and-take of information between the agency and the public, an agency is more likely to enact a solution that meets the needs of and is supported by the local residents.

As a northern Michigan-based, statewide public interest group with numerous members and a board member who live in the Petoskey area, the Michigan Land Use Institute long has been involved in the Petoskey project with the goal of helping to ensure that the best possible transportation solutions are chosen for the area. Over the past few years, the Institute has held a number of public educational forums regarding the project, met with government officials, and worked with a transportation planner and local citizens to develop the Smart Roads: Petoskey alternative.

MDOT, however, has been quite dismissive of the Institute’s participation. Most importantly, as explained above, MDOT has refused to study the Smart Roads: Petoskey alternative recommended by the Institute. One of the reasons given by MDOT for refusing to consider Smart Roads is that the Institute did not address various engineering issues regarding the proposal. (SDEIS p. 3-24) A requirement that members of the public provide engineering studies before their alternatives will be considered would eviscerate the public input provisions of NEPA. Few members of the public would have the knowledge or resources to provide engineering studies with their proposals. Therefore, it was improper for MDOT to refuse to study Smart Roads on the ground that the Institute did not address various engineering issues.

MDOT in other ways also has been unduly dismissive of the Institute’s efforts to achieve the best solution for Petoskey. For example, MDOT published in the SDEIS numerous letters that it had received regarding the Petoskey project, including one letter critical of the Institute. MDOT, however, refused to publish the substance of any of the number of letters the Institute has sent to MDOT over the past few years, even though these letters specifically stated, in bold type at the top of the first page, that they were "for inclusion in the official record of the Petoskey Area Improvement Project." Furthermore, MDOT has frequently questioned the right of the Institute to even be involved in this process, painting the Institute as "outsiders" despite the fact that the Institute has dozens of members in the Petoskey area and numerous local groups have supported its proposals. For example, in a November 30, 2000, article in the Traverse City Record-Eagle, MDOT spokesman Bill Shreck stated "We’re looking at that [the Smart Roads alternative], as we have all input on the project. Certainly, any local input is more important than input from people who don’t live in the community." This dismissive attitude towards the Institute is inconsistent with the public participation provisions of NEPA.

MDOT Has Failed To Share Important Information with the Michigan Land Use Institute and Local Governments Meaningful public input in the NEPA process is possible only when the agency provides the public with all the relevant information needed to analyze its proposal. Unfortunately, throughout this process MDOT has demonstrated a reluctance to provide such information to the public.

For example, MDOT should make information regarding its traffic modeling analysis available so that the public is able to fully review MDOT’s conclusions regarding the efficacy of various alternatives. Under the Council on Environmental Quality’s NEPA regulations, an agency "must identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement." 40 C.F.R. 1502.24. It is impossible to tell from the SDEIS, however, what sort of modeling approaches were employed by MDOT in that study.

In an attempt to remedy this deficiency, the Institute requested such modeling information from MDOT. In response, MDOT provided a large stack of papers regarding its traffic modeling, but the lack of written documentation explaining the documents rendered them quite uninformative and significantly impeded the ability of Institute’s consulting transportation planner to comprehensively review MDOT’s models and conclusions. Seeking clarity, in January 2001 the Institute filed a Freedom of Information Act request with MDOT for further information. MDOT responded that there were 20 pages of information relevant to the Institute’s request, but required $1,300 to provide those pages to MLUI. Clearly, charging $1,300 for 20 pages of information does not comply with the spirit of public participation and openness established by both NEPA and the Freedom of Information Act.

Local governmental agencies have encountered similar difficulties obtaining information from MDOT, frequently waiting up to 18 months for responses to basic information requests about the Petoskey project. Records obtained from Bear Creek Township show efforts by township officials for a year and a half to obtain traffic count information from MDOT for the Petoskey project.

ConclusionIn conclusion, the Michigan Land Use Institute and the Environmental Law & Policy Center find that the Michigan Department of Transportation must perform significant additional analysis before the SDEIS can be considered sufficient under federal law. MDOT’s build alternatives in the SDEIS do not satisfy the purpose and needs, and related goals, of the project. In addition, Smart Roads: Petoskey is a reasonable alternative that under the National Environmental Policy Act requires rigorously exploration and objective evaluation. The Institute and ELPC, as well as New Alternatives, are willing to answer any questions concerning our comment or contribute in any way to the development of a legally satisfactory study of transportation solutions in Petoskey.

(End of Public Comment – Appendix Attached)

Public Comment AppendixFor the "Petoskey Area Improvement Project (SDEIS)"FHWA-MI-EIS-94-02-DS